This class action, filed Jan. 28, 2017, challenged President Trump’s Jan. 27, 2017 Executive Order (EO) ban on admission to the U.S. of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen. It was filed as a petition for a writ of habeas corpus (to seek immediate release of plaintiffs ...
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This class action, filed Jan. 28, 2017, challenged President Trump’s Jan. 27, 2017 Executive Order (EO) ban on admission to the U.S. of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen. It was filed as a petition for a writ of habeas corpus (to seek immediate release of plaintiffs from detention) and a civil complaint, on behalf of two individuals and the class of "all individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States, but who have been or will be denied entry to the United States on the basis of the January 27, 2017 Executive Order." Counsel for plaintiffs were the American Civil Liberties Union, the International Refugee Assistance Project at the Urban Justice Center, the National Immigration Law Center, Yale Law School’s Jerome N. Frank Legal Services Organization and the firm Kilpatrick Townsend & Stockton. They filed the case in the U.S. District Court for the Eastern District of New York, along with a motion for class certification; it was initially assigned to Obama appointee Judge Ann Donnelly, who was on duty for any emergencies that weekend.

The lead plaintiffs were detained at JFK Airport by U.S. Customs and Border Protection and threatened with deportation even though they had valid visas to enter the United States. One plaintiff, Hameed Darweesh, had worked for the U.S. military in Iraq; his life was in danger in Iraq due to that relationship. The other plaintiff’s wife and son were threatened because of their perceived ties to the United States. The complaint argued that their continued detention based solely on the EO violated their Fifth Amendment procedural and substantive due process rights, and exceeded the government's authority under the Immigration and Nationality Act. The EO's singling out of seven majority-Muslim nations for disfavored treatment unconstitutionally discriminated against Muslims, it said.

At 7:30 pm the day the matter was filed, Judge Donnelly heard an emergency motion to stay all removals (that is, deportations) under the order; after a hearing, she granted a nationwide stay of removals to all members of the class. At the hearing, Judge Donnelly further required the defendants to provide a list of all individuals detained as a result of the EO.

The net day, on Jan. 29, 2017, plaintiffs filed a motion asking the Court to "immediately clarify that its Jan. 28th Order is nationwide and order Respondents to enforce the stay of removal." They explained that they had received information that members of the class were continuing to be deported, in other states. Later that day, the plaintiffs filed a "notice" that said that the U.S. had "acknowledge[d] that the Order does in fact apply nationwide." The notice explained, "Petitioners continue to monitor reports of noncompliance and are working with Respondents’ counsel to attempt to resolve them. Petitioners will update the Court as to any issues of noncompliance should further clarification or enforcement be necessary."

In addition, on Jan. 29, a member of the class filed an emergency motion with the court to seeking declaratory relief to clarify that she will not be detained or deported. The class member is an Iranian national and lawful permanent resident of the U.S. with a visa. Her husband, a U.S. citizen, sponsored her for permanent residence in the U.S.

The initial assignment had been for emergency purposes over the weekend; on Monday, Jan. 30, the case was randomly reassigned to Judge Carol Bagley Amon.

On Feb. 2, Judge Amon extended the TRO to Feb. 21, 2017 for good cause shown. In addition, the New York State Office of the Attorney General filed a Motion to Intervene, which was granted on Feb. 10.

The government on Feb. 6 filed a notice of supplemental authority which noted the Feb. 3 letter written by the Deputy Assistant Secretary for Visa Services at the Department of State. This Feb. 3 letter reversed the provisional revocation of all visas previously issued by the Deputy Assistant Secretary.

The petitioners on Feb. 7 moved for the court to enforce its Jan. 28, 2017 order. The Jan. 28, 2017 order had directed the government to provide the plaintiffs' counsel with a list of all individuals detained pursuant to President Trump's Jan. 27, 2017 EO, including individuals previously released or removed.

The court issued a Feb. 8 order instructing the parties to submit memos and a briefing schedule in preparation for a hearing originally scheduled on Feb. 24. After the parties requested an expedited hearing on the stay motion and the motion to dismiss, because the government would not consent to an extension of the stay beyond Feb. 21, the court agreed to hold a hearing on Feb. 21.

Also on Feb. 8, the defendants filed a motion to dismiss the plaintiffs' petition and complaint for lack of subject-matter jurisdiction and failure to state a claim. The defendants' motion also opposed the plaintiffs' motion for a preliminary injunction.

From Feb. 13-16, numerous organizations filed amicus briefs, including the Harvard Immigration and Refugee Clinical Program, the Fred T. Korematsu Center for Law and Equality, several members of Congress (represented by the Constitutional Accountability Center), the Commonwealth of Massachusetts, seventeen universities (Brown, Carnegie Mellon, Columbia, Cornell, Dartmouth, Duke, Emory, Harvard, Johns Hopkins, MIT, Northwestern, Princeton, Stanford, University of Chicago, University of Pennsylvania, Vanderbilt, and Yale), and many others. On Feb. 16, 167 members of Congress filed an amicus brief arguing, among other things, that the EO is irreconcilable with Congress's clearly expressed intent in the Immigration and Nationality Act.

The plaintiffs on Feb. 16 filed a response in opposition to the government's motion to dismiss the preliminary injunction. The plaintiffs argued that though the named plaintiffs had been admitted to the US, the case was not moot because: 1) the relief that the named plaintiffs received represented only a voluntary cessation of the challenged policy; 2) because the case's class claims were inherently transitory; and 3) because there were still individuals who, pursuant to the EO, have been unconstitutionally denied entry or admission into the US.

In the meantime, in Washington v. Trump, in the Western District of Washington and then the Ninth Circuit, the EO had also been enjoined, and a stay of proceedings denied on February 9; on February 16, the Trump administration announced that rather than continuing to litigate the EO's lawfulness, it would rescind the order and soon replace it with a revised version.

The parties in this case therefore jointly requested on Feb. 17 that the court stay proceedings related to the petitioners' motion for a preliminary injunction and the government's motion to dismiss. The parties also requested that the court cancel the Feb. 21 hearing that was to be set on these motions. The court granted the parties' joint motion, and further determined that the injunction issued in Washington v. Trump provided sufficient protection so as to not require that the Jan. 28 injunction be extended beyond Feb. 21. However, should the Washington injunction be vacated while the EO was in effect, the Jan. 28 injunction would be reinstated and the court would schedule a prompt hearing on whether the Jan. 28 injunction should be extended further.

The plaintiffs then on Feb. 20 filed a reply in support of their Feb. 7 motion for the court to enforce its Jan. 28 order directing the government to provide the plaintiffs' counsel with a list of all individuals detained pursuant to the EO. In the reply, the plaintiffs argued that the defendants should release the names of "all individuals excluded on the basis of the EO" after this action was filed, and not just those individuals which the plaintiff's counsel identified.

Judge Amon on Feb. 21 granted plaintiffs' Feb. 7 motion in part. She read Judge Donnelly's Jan. 28 order as requiring defendants "to provide a single list of putative class members being held pursuant to the EO at any time from the signing of the order and for a reasonable period thereafter, which would include through the following day." Judge Amon also interpreted Judge Donnelly's use of "the term 'detained' "to be in the everyday sense, meaning those being held for questioning pursuant to the terms of the EO, as distinguished from individuals formally placed in removal proceedings." The plaintiffs in this case specifically, noted Judge Amon, were not placed in removal proceedings but were nonetheless "detained." Accordingly, Judge Amon ordered defendants by Feb. 23 to provide plaintiffs with a list of all individuals with approved refugee applications, valid immigrant and nonimmigrant visas, or other legal authorization to enter the United States, from the seven banned countries, who were held, including being processed, by CBP pursuant to the EO from Jan. 28 at 9:37pm (when Judge Donnelly ordered defendants to produce the list) through Jan. 29 at 11:59pm.

The government filed two status reports on Feb. 23. The first status report informed the court that the government had prepared the list as ordered by Judge Amon on Feb. 21 ("putative class members being held pursuant to the EO at any time from the signing of the order and for a reasonable period thereafter"), and that the parties were working through the last-minute terms of the protective order. The second status report informed the court that the parties had agreed to a protective order covering the list containing the names of all individuals processed at any time from 9:27 PM on Jan. 28 to 11:59 PM on Jan. 29 pursuant to the Jan. 27 EO, including those previously released or removed, and that the government had provided the list to the petitioners. The petitioners reserved the right to challenge the government's designation of any information in the list for being overbroad.

That same day, the parties filed a joint motion for an order protecting the confidentiality of the individuals named in the list, which the court granted.

The parties appeared for oral argument on Feb. 24 before Judge Amon. During oral argument, the government stated that they would inform the petitioners as to which individuals on the Feb. 23 list were ultimately admitted into the US. The petitioners stated that they would provide the government with the names of individuals who they believed were not included on the list, but who should have been, so that the government may investigate accordingly.

Also during oral argument on Feb. 24, the parties requested to adjourn the present briefing schedule regarding a potential motion to dismiss the Intervenor Plaintiff, the New York State Office of the Attorney General. The request was granted and the parties agreed to submit a new briefing schedule, if necessary, within seven days after a new EO is issued.

Many religious organizations filed an appearance on Feb. 27.

On Mar. 6, the President rescinded the Jan. 27 EO and replaced it with a narrower one, Executive Order 13780. On the same day, defendants filed a notice about the release of this new EO to take effect on Mar. 16, revoking and replacing the previous one. Defendants argued that the new EO differed substantially from the previous one and thus would not be affected by Judge Amon's TRO. Specifically, defendants noted that the new EO did not ban Iraqi nationals. Defendants stated that they would, as previously agreed, file a proposed joint scheduling order by Mar. 13.

Following this, the New York State Attorney General sent a Mar. 9 letter to the court, specifying that in light of the new EO, the AG would not pursue the case and would not file its proposed Feb. 2 Complaint in Intervention.

On Mar. 13, the parties then submitted a letter to Judge Amon, indicating that they were in settlement discussions and requesting a stay. Judge Amon granted such stays repeatedly for two and three weeks at a time.

On May 1, both plaintiff and defendants wrote separately to Judge Amon, informing her that the parties were unable to reach a settlement. After several conferences in May, the court re-scheduled the follow-up conference several times, as defendants twice requested an adjournment. (Judge Amon on May 31 mentioned that "[t]he Court is not pleased with respondents' request.") Conferences, follow-ups, and extensions continued over the next few months. In the meantime, Judge Amon on Aug. 15 stayed sua sponte a ruling on plaintiff's Jan. 28 class certification motion, while settlement discussions proceeded.

Judge Amon held a settlement conference on Aug. 28 and a follow-up telephone conference the next day. The parties stated that they had reached a settlement in principle. Judge Amon asked them to confirm the details in the next settlement conference on Aug. 31. They did so, and entered the terms of the settlement agreement on the record. The parties then on Sept. 1 filed the settlement agreement and stipulation of dismissal.

According to the settlement agreement, defendants would within 14 days notify all persons barred from entering the US under the Jan. 27 EO, and who were still outside the US, that they could re-apply for a visa. The letter would include a list of free legal services providers. The parties agreed that no applicants would be automatically entitled to a visa just by re-applying. After completing this notification, defendants would notify plaintiffs of their compliance, and plaintiffs would then file a stipulated dismissal of all claims, relief, damages, and jurisdiction for this matter.

The docket reflects that the court closed this case on Sept. 21, 2017.

Two individuals on behalf of class of all individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States, but who had been or would be denied entry to the United States on the basis of the January 27, 2017 Executive Order.

Letter from New York Attorney General Eric T. Schneiderman Re: Compliance of U.S. Department of Homeland Security and U.S. Customs and
Border Protection with Federal Court Injunction and Restraining Order

Brief of the Fred T. Korematsu Center for Law and Equality, Jay Hirabayashi, Holly Yasui, Karen Korematsu, Civil Rights Organizations, and National and New York Bar Associations of Color, as Amici Curiae [...] [ECF# 129]